Cass Review and Patrick Harvie's appearance on BBC Scotland's Sunday Show: FOI release

Information requested

All information held by the Scottish Government on the Cass review. Can you release briefings, papers, notes on the review? Can you also release any correspondence involving ministers and officials relating to the review?

More widely, can you release any correspondence involving ministers and officials relating to Patrick Harvie's appearance on BBC Scotland's Sunday Show on 21 April 2024? Correspondence here should also include whatsapps.

Response

I have responded to your request in two parts. The first part is as follows:

'all information held by the Scottish Government on the Cass review. Can you release briefings, papers, notes on the review? Can you also release any correspondence involving ministers and officials relating to the review? ‘

While our aim is to provide information whenever possible, in this instance the costs of locating, retrieving and providing the information requested would exceed the upper cost limit of £600. This is due to the wide ranging scope of your request for 'all information held by the Scottish Government on the Cass Review'. Under section 12 of FOISA public authorities are not required to comply with a request for information if the authority estimates that the cost of complying would exceed the upper cost limit, which is currently set at £600 by Regulations made under section 12.

You may, however, wish to consider reducing the scope of your request in order that the costs can be brought below £600. For example, you may wish to provide a time frame for the information held. You may also find it helpful to look at the Scottish Information Commissioner's 'Tips for requesting information under FOI and the EIRs' on his website at: http://www.itspublicknowledge.info/YourRights/Tipsforrequesters.aspx.

In answer to the second part of your question – ‘release any correspondence involving ministers and officials relating to Patrick Harvie's appearance on BBC Scotland's Sunday Show on 21 April 2024? Correspondence here should also include whatsapps’. I enclose a copy of some of the information you requested. This is provided in a separate attachment to this letter.

While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested because an exemption(s) under sections 29(1)(a) (formulation or development of government policy), section 30(1)(b)(i) (free and frank provision of advice) and section 38(1)(b) (personal information) of FOISA applies to that information. The reasons why these exemptions apply are explained in the Annex to this letter.

ANNEX – EXEMPTIONS APPLIED

Section 29(1)(a) – formulation or development of government policy

An exemption under section 29(1)(a) of FOISA (formulation or development of government policy) applies to some of the information requested because it relates to the development of the Scottish Government’s policy on the Climate Change (Scotland) Bill.

This exemption is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We have found that, on balance, the public interest lies in favour of upholding the exemption. We recognise that there is a public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate. However, there is a greater public interest in high quality policy and decision-making, and in the properly considered implementation and development of policies and decisions. This means that Ministers and officials need to be able to consider all available options and to debate those rigorously, to fully understand their possible implications. Their candour in doing so will be affected by their assessment of whether the discussions on Climate Change (Scotland) Bill will be disclosed in the near future, when it may undermine or constrain the Government’s view on that policy while it is still under discussion and development.

Section 30(b)(i) – free and frank provision of advice

An exemption under section 30(b)(i) of FOISA (free and frank provision of advice) applies to some of the information requested. This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice. This exemption recognises the need for officials to have a private space within which to provide free and frank advice to Ministers and with other officials before the Scottish Government reaches a settled public view. Disclosing the content of free and frank advice on briefing provided surrounding the Climate Change (Scotland) Bill will substantially inhibit the provision of such advice in the future, particularly because discussions are still ongoing and final decisions have not been taken.

This exemption is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We have found that, on balance, the public interest lies in favour of upholding the exemption. We recognise that there is a public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate. However, there is a greater public interest in allowing a private space within which officials can provide full and frank advice to Ministers and senior officials as part of the process of exploring and refining the Government’s [policy] position on the Climate Change (Scotland) Bill until the Government as a whole can adopt a policy that is sound and likely to be effective. This private thinking space is essential to enable all options to be properly considered, based on the best available advice, so that good [policy] decisions can be taken. Premature disclosure is likely to undermine the full and frank discussion of issues between Ministers and officials, which in turn will undermine the quality of the policy making process, which would not be in the public interest.

Section 38(1)(b)

An exemption under section 38(1)(b) of FOISA (personal information) applies to some of the information requested because it is personal data of a third party e.g. the names and contact details of officials and disclosing it would contravene the data protection principles in Article 5(1) of the General Data Protection Regulation and in section 34(1) of the Data Protection Act 2018. This exemption is not subject to the ‘public interest test’, so we are not required to consider if the public interest in disclosing the information outweighs the public interest in applying the exemption.

About FOI

The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at http://www.gov.scot/foi-responses.

FOI 202400411612 - Information released - Attachments 1 & 2

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6 page PDF

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363.5 kB